When Are Punitive Damages Available in a Wrongful Death Lawsuit?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 16, 2021

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Punitive damages are damages intended to punish a defendant, not compensate a plaintiff. While it is true that a prevailing plaintiff who receives an award of punitive damages benefits financially, the purpose of punitive damages is to deter the defendant and others from acting in the same manner. In short, punitive damages are a judge or jury’s way of putting both the defendant and the public in general on notice that particular conduct will not be tolerated.


The availability of punitive damages in wrongful death cases is determined on a state-by-state basis. Many states have capped the amount of punitive damages available, limited the types of cases where punitive damages may be awarded, or passed laws prohibiting punitive damages outright. A local attorney would be the best source of knowledge regarding the availability of punitive damages in a specific area.

In states where punitive damages are still allowed, they are generally awarded in cases where a defendant’s wrongdoing is intentional, malicious, or shows a blatant disregard for the well-being of another person. The wrongdoing, in most cases, must be so egregious that punishment—not just compensation—is warranted. Some states—Alabama comes to mind—have a lower threshold. In fact, in Alabama, common negligence can give rise to punitive damages in a wrongful death case, depending on the circumstances.

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Exemplary Damages

Some states, while prohibiting punitive damages in wrongful death cases, allow for what are called exemplary damages. As the word indicates, exemplary damages are intended to draw attention to a wrongdoer to make an example of them in an attempt to deter similar conduct in the future. The difference is subtle, but in the eyes of some state legislatures, exemplary damages serve the purposes of public policy, while punitive damages do not.

Punitive Damages and Net Worth

Punitive damages often tend to mirror the net worth of a particular wrongdoer. It is highly unlikely that a multi-million dollar punitive damages verdict would be awarded against a destitute drunk driver. If the wrongdoer does not have millions, the judgment is essentially worthless. However, if the driver was an employee of a wealthy multi-national corporation that was a party to the lawsuit, it is much more likely that punitive damages (if allowed by law) would be measured in millions.

Most people have heard of cases where juries award millions of dollars in punitive damages against corporations. Cases involving punitive awards against drug companies, auto companies, or other large manufacturing concerns have skyrocketed since the 1980s. It is important to note that such awards are not commonplace in wrongful death actions, and in fact the verdicts are often reduced or thrown out after the fact.

Forum Shopping for Punitive Damages

Since many states have eliminated punitive damages, “forum shopping” has become commonplace. Forum shopping involves filing a wrongful death case in a jurisdiction in which punitive damages are allowed, even if the parties have little or no connection to the jurisdiction where the case is filed. This type of maneuvering often occurs in mass tort cases such as asbestos-related wrongful death cases. Higher total verdicts generally mean higher attorney fees for prevailing plaintiff attorneys, so the availability of punitive damages is, for some, an important consideration when filing a case.

Punitive damages are controversial. There are heated arguments both for and against them in most legislatures around the country, often falling along party lines. In wrongful death cases, the availability of punitive damages is slowly going the way of the dodo. Consult a local attorney to confirm whether punitive damages are available in a wrongful death case in a specific jurisdiction.

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